Thursday, June 3, 2010

More Environmental Legal History

The oil keeps coming, and so does the environmental legal history. After my post on this subfield, a few readers called my attention to more recent work in this area.

Volume III of the Cambridge History of Law in America (2008) includes a chapter on "Law and the Environment" by Betsy Mendelsohn (University of Maryland). Here's the first paragraph:

At first glance, 'environmental law' might seem, from its name, a phenomenon of the late twentieth century, growing out of the 1960s environmental movement and taking off with the National Environmental Policy Act of 1969. In fact, environmental law cannot be understood apart from the long-established debates and tensions that define the traditions of American law as a whole: individual rights and the extent of state power, the authority of law and its means of implementation. Long before the mid-twentieth century, American law was fully engaged with such matters as, for example, the private use of common resources, such as wildlife and rivers; private activity that injured public health and welfare, such as the emission of industrial wastes; and the municipal assumption of administrative power to build networked sanitary infrastructure. Courts had accepted science-based rationales to authorize law that limited private rights. Governments had engaged in interstate responses to environmental problems that crossed jurisdictional boundaries.

Environmental activism has most often been credited to grassroots protesters, but much early progress in environmental protection originated in the halls of Congress. As Paul Milazzo shows, a coterie of unlikely environmentalists placed water quality issues on the national agenda as early as the 1950s and continued to shape governmental policy through the early 1970s, both outpacing public concern and predating the environmental movement.

Milazzo examines a two-decade crusade to clean up the nation’s water supply led by development boosters, pork barrel politicians, and the Army Corps of Engineers, all of whom framed threats to the water supply as an economic rather than environmental problem and saw pollution as an inhibitor of regional growth. Showing how the legislative branch acted more assertively than the executive, the book weaves the history of the federal water pollution control program into a broader narrative of political and institutional development, covering all major clean water legislation as well as many other landmark environmental laws.

David Rosner, who in 2002 co-authored a book with Gerald Markowitz on industrial pollution, recently wrote a fascinating piece on "what happens when historians enter the courtroom" (Law and Contemporary Problems, Vol. 72 (2009)). He begins by introducing the controversy surrounding historians' participation in tort cases:

At the annual meeting of the American Association for the History of Medicine, traditionally a collegial conclave of subspecialists, a panel on the history of childhood diseases ended up in a shouting match after a respected historian who had been a consultant for the tobacco, asbestos, soft-drink, and lead industries, presented a paper arguing that the lead industry had done nothing wrong before the 1950s, and that, in any case, the problem of childhood lead poisoning was vastly overblown. During the conference the halls were abuzz with gossip and amazement, and it soon became apparent that many more members had been consulting for industry. The then-current president of the Association and Professor of Medicine and History at Washington University had been testifying and writing affidavits for the tobacco industry for nearly fifteen years. Another Professor of Medicine and History at Duke University had worked for the tobacco industry as well as the lead industry throughout the 1990s; less well-known historians had been recruited by Big Tobacco and other industries. Some fifty-seven colleagues have worked for the tobacco industry alone.

[footnotes omitted]

The rest of the article "looks at the recent recruitment of historians into the world of toxic-tort law and examines the ways that the craft of history is used and abused in the legal system." Drawing on the author's personal experiences, the article "identif[ies] the important ways that historians’ skills can be used on behalf of people claiming to be harmed by a variety of industries as well as the ways that these same skills have been used to defend industry activities." You can read the full article here.

For more on Rosner and Markowitz's book, Deceit and Denial: The Deadly Politics of Industrial Pollution, check out their impressive website. It includes reviews and supporting documents.

In 1880, coal was the primary energy source for everything from home heating to industry. Regions where coal was readily available, such as the Ruhr Valley in Germany and western Pennsylvania in the United States, witnessed exponential growth-yet also suffered the greatest damage from coal pollution. These conditions prompted civic activism in the form of “anti-smoke” campaigns to attack the unsightly physical manifestations of coal burning. This early period witnessed significant cooperation between industrialists, government, and citizens to combat the smoke problem. It was not until the 1960s, when attention shifted from dust and grime to hazardous invisible gases, that cooperation dissipated, and protests took an antagonistic turn. The Age of Smoke presents an original, comparative history of environmental policy and protest in the United States and Germany. Dividing this history into distinct eras (1880 to World War I, interwar, post–World War II to 1970), Frank Uekoetter compares and contrasts the influence of political, class, and social structures, scientific communities, engineers, industrial lobbies, and environmental groups in each nation. He concludes with a discussion of the environmental revolution, arguing that there were indeed two environmental revolutions in both countries: one societal, where changing values gave urgency to air pollution control, the other institutional, where changes in policies tried to catch up with shifting sentiments. Focusing on a critical period in environmental history, The Age of Smoke provides a valuable study of policy development in two modern industrial nations, and the rise of civic activism to combat air pollution. As Uekoetter's work reveals, the cooperative approaches developed in an earlier era offer valuable lessons and perhaps the best hope for future progress.

For a sense of general trends in this field, I've been in touch with David Schorr, a legal historian who chairs the Law and Environment Program at Tel Aviv University and recently visited at Georgetown. (He has posted a bunch of work in this area on SSRN.) His sense is that the field is growing rapidly, owing to a rise in interest in environmental issues, but that no cohesive body of environmental legal historians exists. Scholars interested in the policy angle write for policy historians, those interested in the environmental justice movement write for historians working on similar movements, etc. Do others have opinions on the state of this subfield?

4 comments:

Hi - As a former environmental lawyer and current PhD student in legal history I've been giving this topic some thought for a number of years. I would add the following:

(1) On the history of contemporary environmental law: (a) Richard J. Lazarus, The Making of Environmental Law (b)Samuel P. Hays, Beauty, Health, and Permanence(c) Richard N.L. Andrews, Managing the Environment, Managing Ourselves

(2) On the management of common resources, including the public trust doctrine: (a) Arthur F. McEvoy, The Fisherman’s Problem(b) Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property"(c) Barbara Leibhardt, “Among the Bowheads: Legal and Cultural Change on Alaska’s North Slope Coast to 1985"(d) Bonnie McCay, Oyster Wars and the Public Trust(e) Molly Selvin, “The Public Trust Doctrine in American Law and Economic Policy, 1789-1920."

(3) On the environmental costs of law-enabled natural resource "development":(a) James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (b)“Bounding the Land” in William Cronon, Changes in the Land(c) Theodore Steinberg, Nature Incorporated: Industrialization and the Waters of New England

(4) On wildlife protection:(a) Michael Bean and Melanie Rowland, The Evolution of National Wildlife Law (b) Shannon Peterson, Acting for Endangered Species

(5) On environmental justice and toxics:(a) Robert N. Proctor, Cancer Wars (b) Barbara Allen, Uneasy Alchemy(c) Eileen Maura McGurty, “From NIMBY to Civil Rights: The Origins of the Environmental Justice Movement"(d) David Rosner and Gerald Markowitz, “Industry Challenges to the Principle of Prevention in Public Health: The Precautionary Principle in Historical Perspective"

(6) On urban nuisances:(a) Hendrik Hartog, “Pigs and Positivism"(b) Martin Melosi, “Hazardous Waste and Environmental Liability: An Historical Perspective"(c) Christine Meisner Rosen, "Balancing Doctrine in Pollution Nuisance Law: Differing Perceptions of the Value of Pollution Abatement Across Time and Place, 1840-1906"(d) Christopher Sellers, “Factory as Environment: Industrial Hygiene, Professional Collaboration and the Modern Sciences of Pollution"(e) William J. Novak, The People’s Welfare(f) David Stradling, Smokestacks and Progressives

(7) On land management and resource extraction in the American West:(a) Paul W. Gates, History of Public Land Law Development (b) Norris Hudley, Water and the West(c) Charles McCurdy, “Stephen J. Field and Public Land Law Development in California, 1850-1866"(d) Donald J. Pisani, To Reclaim a Divided West: Water, Law, and Public Policy, 1848-1902 (e) Karl Jacoby, Crimes Against Nature(f) Karen R. Merrill, Public Lands and Political Meaning

(8) On the law and politics of large-scale federal infrastructure:(a) Jeffrey K. Stine, Mixing the Waters: Environment, politics, and the building of the Tennessee-Tombigbee Waterway(b) Karl B. Brooks, Public Power, Private Dams